Laundry and Linen Drivers and Industrial Workers Union, Local 847 v. Satin Finish Hardwood Flooring (Ontario) Limited, 1984 CanLII 1090

Ontario Labour Relations Board

[1984] OLRB Rep. November 1602

185 1-84-R Laundry and Linen Drivers and Industrial Workers Union, Local 847, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Satin Finish Hardwood Flooring (Ontario) Limited, Satin Finish Hardwood Flooring Limited, Respon­dents

BEFORE: Owen V. Gray, Vice-Chairman and Board Members W. G. Donnelly and W. F. Rutherford.

DECISION OF THE BOARD; November 8, 1984

1. This is an application for certification in which the applicant has requested that a pre-hearing representation vote be taken. In accordance with its usual practice, the Board by order dated October 17, 1984, appointed a Labour Relations Officer to examine the records of the applicant and of the respondent and to confer with the parties as to the description and composition of an appropriate bargaining unit, the description and composition of the voting constituency, the list of employees as of the terminal date for the purposes of any vote which might be directed and other matters relating to entitlement to and arrangements for such a vote. The Labour Relations Officer so appointed met for these purposes with representatives of the parties on October 26, 1984. The parties were not then in agreement on a description either of the appropriate bargaining unit or of a voting constituency for the purpose of any pre-hearing representation vote which might be ordered. The parties' solicitors have set out their positions in writing in letters now filed with the Board.

2. In its application for certification, the applicant asks for certification as bargaining agent of employees in the following bargaining unit, which its claims to be appropriate for collective bargaining:

All employees of the Respondent in the municipality of Metropolitan Toron­to, save and except foremen, persons above the rank of foremen, office, sales and accounting staff and security staff.

It is apparent from the application, and from the subsequent representations of the applicant, that the words "the Respondent" as used in this bargaining unit description refer collectively to the respondents Satin Finish Hardwood Flooring (Ontario) Limited and Satin Finish Hardwood Flooring Limited, whom the applicant claims should be treated as constituting one employer for the purposes of the Act by reason of their carrying on associated or related activities or businesses under common control or direction within the meaning of subsection 1(4) of the Labour Relations Act.

3. Each of the two respondents has filed a reply in which it claims that the unit of employees appropriate for collective bargaining should be described as follows:

All employees of Finished Woodfloor Ltd., Satin Finish Hardwood Flooring Limited and Satin Finish Hardwood Flooring (Ontario) Limited in the Municipality of Metropolitan Toronto, save and except foremen, persons above the rank of foreman, office, sales and accounting staff.

Each of the respondents states that its business is "fundamentally bound" to the businesses of Finished Floorwood Ltd. and the other respondent. Each respondent states that its business "is associated or related to the business of Finished Floorwood Ltd. and [the other respondent], all of which businesses are under common direction and control . . . ", and each respondent requests that the Board make a declaration that all three corporations constitute one employer for the purposes of the Act.

4. It appears to be common ground that the employees for whom the applicant seeks certification all work at premises occupied by both named respondents at 8 Oak Street in Weston, Ontario. It also appears to be common ground that employees of Finished Floorwood Ltd. perform their work at a separate location at 50 Penn Drive, Weston, Ontario.

5. The respondents' position is that the voting constituency should include employees of Finished Woodfloor Ltd. in addition to employees of the respondents named in the applica­tion, and that the Board should not order any pre-hearing representation vote unless it is satisfied that the applicant has the requisite membership support among employees in that broad voting constituency. In the alternative, the respondents say they should be treated as separate employ­ers for the purposes of the Act. It would follow from that alternative position that employees of each respondent would constitute a separate appropriate bargaining unit.

6. The applicant trade union takes the position that the appropriate bargaining unit encompasses all employees of both named respondents employed at 8 Oak Street, Weston, Ontario, and that the named respondents should be treated as a single employer in that respect.

Without conceding the respondents' allegation that they and Finished Woodfloor Ltd. should together be the subject of a related employer declaration pursuant to subsection 1(4) of the Act, the thrust of the applicant's position is that the respondents' relationship with Finished Woodfloor Ltd. is of no consequence because the appropriate bargaining unit would be limited to employees employed at 8 Oak Street, no matter who may be their employer for the purposes of the Act. It should be noted that a separate application for certification with respect to the employees of Finished Woodfloor Ltd. was filed by the applicant trade union on the day it filed this application (Board File No. 1870-84-R). A pre-hearing representation vote was also requested in that application, and the same Labour Relations Officer was appointed for the same purposes and met with the parties on the same day as is the case in this application. The applicant sought leave to withdraw that application in the course of the meeting. The respondent opposes the request for leave to withdraw, and asks that the application be dismissed and a bar imposed pursuant to section 103(2)(i) of the Act. Those are matters which will be dealt with by the Board in a separate decision disposing of that application. Whatever the disposition, it is apparent that the applicant is not seeking to represent employees of Finished Floorwood Ltd., and the possible participation of those employees in a vote comes into issue only as a result of the position taken by the respondents to this application.

7. In his written submission to the Board, counsel for the respondents takes the position that there must be a Board hearing before the pre-hearing vote proceeds:

... It is fundamental however, that that vote not proceed until the Board has had an opportunity to hear evidence and argument from the parties with respect to whether or not the applicant has qualified under Section 9(2) of The Labour Relations Act. A condition precedent to the granting of a prehearing representation vote requires the Board to make a determination with respect to the voting constituency; the respondents submit that the appropriate constituency is comprised of the employees of the three respon­dents. The trade union on the other hand maintains that the constituency is comprised of only two of the respondents.

It is submitted therefore that the Board must convene a hearing both with respect to the voting constituency and the level of membership support at the three respondents. Sealing of the ballot boxes in the circumstances is not sufficient in that there is a question as to whether or not the union has sufficient support to allow the employees a vote in the first instance.

8. Section 9 of the Labour Relations Act reads as follows:

9.-( 1) Upon an application for certification, the trade union may request that a pre-hearing representation vote be taken.

(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were members of the trade union at the time the application was made, the Board may direct that a representation vote be taken among the employees in the voting constituen­cy.

(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection (2) shall be sealed and that the ballots shall not be counted until the parties have been given full opportunity to present their evidence and make their submissions.

(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection (2) has the same effect as a representation vote taken under subsection 7(2).

9. In Savette Family Department Store Ltd., [1974] OLRB Rep. May 327, the applicant requested a pre-hearing vote with respect to a unit of employees of the respondent which included persons working in the drug store section of the respondent's premises. It appears that the applicant had, in another application then before the Board, taken the position that such persons were not employees of the respondent but, rather, were employees of G. Tamblyn Limited. The respondent objected to what it characterized as the applicant's mutually conflict­ing positions on the employment status of those persons, and took the legal position that:

all of the arrangements concerning a vote, including the question of the ballot which identifies and sets out the name of the employer, requires [sic] the acceptance or prior determination of the correct employer as an integral condition the vote.''

The respondent took the position that the pre-hearing representation vote requested by the applicant should be postponed until the employment status of the drug department employees had been determined in the other proceedings in which that matter had been raised. The Board then considered its discretion under section 9, then section 8, of the Labour Relations Act:

7. It would appear that the pre-requisites to the exercise of the Board's jurisdiction to order a pre-hearing representation vote as set out in Subsec­tion 2 of Section 8 of the Act are essentially two-fold. Firstly, the Board determines a voting constituency and secondly, it must be satisfied upon an examination of the relevant records that the applicant has taken in membership not less than 35% of the employees encompassed in that voting constituency. There are no other qualifications for the Board exercising its discretion in this regard. Nevertheless, Subsection 3 of Section 8 of the Act does preserve the rights of the parties to present their evidence and make their submissions at a time subsequent to the taking of the vote in that the ballot box containing the ballots cast during the vote is sealed and the ballots are not counted pending a further order by the Board. Once the Board has had an opportunity to review the representations of the parties in this regard, it might very well conclude that the applicant does not in fact possess the necessary 35% membership in the voting constituency (or indeed for that matter — in the resultant bargaining unit found to be appropriate by the Board). Thus, it is not uncommon for the Board to subsequently dismiss such applications on this basis even though a representation vote has been held. Further, the practice adopted by the Board in this respect is in complete accord with the provisions of Subsection 2 of Section 8 of the Act, which does not require that the Board be "satisfied" (as is the case in the "ordi­nary' vote situation pursuant to Section 7(2) of the Act) with respect to the applicant's membership position. The only requirement imposed in this regard is that it merely "appears" as such to the Board. It is this statutory language which permits the Board to order an immediate vote upon such limited evidence and thus obtain the views of the employees as disclosed through a representation vote conducted with a minimum of delay, leaving other contested issues to be determined at a later date.

On the basis of this analysis, the Board rejected the respondent's position and directed a pre-hearing representation vote. The Board has consistently taken the position that a pre­hearing representation vote should not await formal adjudication of any aspect of the descrip­tion or composition of the bargaining unit in the guise of a preliminary issue. As the Board observed in The Board of Education for the City of North York, [1984] OLRB Rep. July 989:

7. The purpose of the pre-hearing vote procedure is to test the question of representation as quickly as possible after the application date. This avoids the prejudice which inevitably occurs when the conduct of a represen­tation vote must await the determination of factual and legal issues which can only be resolved after a hearing in which each of the affected parties can participate. Often those disputed issues include the appropriate descrip­tion of the bargaining unit, voter eligibility and employee status of chal­lenged individuals. If the existence of such disputes could stand in the way of a pre-hearing vote, the procedure's efficacy would be destroyed. That is why the Legislature required only that the Board strike a voting constituency and prescribed as the vote prerequisite only that the applicant have the appearance of the requisite support within the voting constituency. (See generally Emery Industries Limited, [1980] OLRB Rep. March 316 at paragraphs 5,6 and 7). Where determination of the actual prerequisite level of support depends on a resolution of contested factual or legal issues, the Board assesses the appearance of support on the assumption that the union s position on the matters in dispute is correct. A pre-hearing vote is normally directed if, on that assumption, the requisite appearance of support is present. The contested issues are dealt with after the vote is held. However, the results of a pre-hearing vote are of no effect unless it is later demon­strated that not less than 35 per cent of the persons ultimately found to have been employees in the appropriate bargaining unit on the application date were members of the applicant on that date. If that demonstration depends on contested issues being later resolved in the applicant's favour, the Board will normally defer counting any ballots until it can resolve those issues which bear on the propriety of counting all, or any, of the ballots.

See also Hydro-Electric Power Commission of Ontario, [1968] OLRB Rep. July 376; The Ontario Educational Communications Authority, [1974] OLRB Rep. Dec. 886; Emery Indus­tries Limited, [1980] OLRB Rep. March 316 and Central Hospital [1982] OLRB Rep. March 347.

10. While it is necessary for the Board to know the parties' positions on relevant issues before it can make the determinations contemplated by subsection 9(2) of the Act, it is not necessary for the Board to resolve their differences on those issues before making those determinations. Because the Board need only identify and delineate the conflicts rather than resolve them, it is only the most unusual case in which the officer's report on his meeting with the parties will be an insufficient basis on which to make the determinations called for by subsection 9(2). Although it is not in this case, it may occasionally be necessary for the panel to consult directly with the parties, rather than receive their positions through the officer or in writing; there should never be a necessity for a formal pre-vote evidentiary hearing in a pre-hearing vote proceeding. There may well be cases in which the issues of fact and law raised by the parties are so complex that some or all of them must be resolved before there can be any potentially beneficial resort to a representation vote. The appropriate response in such cases is to decline to exercise the discretion to order a pre-hearing representation vote and, instead, direct that the application be processed in the ordinary manner: see Howard Furnace Limited, [1961] OLRB Rep. July 98. We do not feel that the issues raised in this case require that response.

11. In considering this application, we must first determine a voting constituency, then ascertain whether there is an appearance of the requisite membership support within that constituency as of the application date. Because of the use to which pre-hearing representation votes are ultimately put, determination of the voting constituency is sensitive to the matters in dispute between the parties as they relate to the description of the appropriate bargaining unit. However, the limits of the voting constituency are not necessarily determined by the extremes of the positions taken by the parties, as the respondent seems to assume in taking the positions it does. The applicant is seeking to represent employees who work at 8 Oak Street in Weston, Ontario. In support of its application, it has filed membership evidence with respect to persons employed at that address. The respondent's contention is that the employer(s) of those employees and the employer of employees at 50 Penn Drive should be treated as being a single employer for the purposes of the Labour Relations Act. From the respondents' perspective, they are in the same position as a single employer with employees employed at two different municipal addresses within the same municipality, and the applicant is in the position of having applied for certification with respect to employees of that employer at only one of those two locations. To continue the analogy, the main issue then becomes whether the employees at that single location constitute a unit of employees appropriate for collective bargaining. If an applicant trade union in that position requested a pre-hearing representation vote of employees at the single location and resisted inclusion in the voting constituency of employees at the employer's other location or locations, we would not be obliged to define the voting constituency so as to include employees at those other locations.

12. We can see no reason to define the voting constituency so as to include employees of Finished Woodfloor Ltd. If the Board ultimately determines that those employees are included in the unit of employees appropriate for collective bargaining, it does not appear that the applicant would then be able to demonstrate, on the basis of the membership evidence filed with this application, that not less than thirty-five per cent of the employees in that bargaining unit were its members at the time this application was made. It does, however, appear to the Board on an examination of the records of the applicant and the records of the respondents that not less than thirty-five per cent of the employees of the respondents in the voting constituency hereinafter described were members of the applicant at the time the application was made.

13. The Board therefore directs that a pre-hearing representation vote be taken of the employees of the respondents in the following voting constituency:

All employees of Satin Finish Hardwood Flooring (Ontario) Limited and Satin Finish Hardwood Flooring Limited in the Municipality of Metropoli­tan Toronto, save and except foremen, persons above the rank of foreman, office, sales and accounting staff.

14. All employees of the respondents in the voting constituency on October 25, 1984, who have not voluntarily terminated their employment or who have not been discharged for cause between October 25, 1984, and the date the vote is taken will be eligible to vote.

15. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with their employer.

16. In view of the dispute between the parties with respect to the description of the appropriate bargaining unit(s), if any, of employees at 8 Oak Street, the Board directs that separate ballot boxes be used in taking the representation vote, with ballots cast by employees of Satin Finish Hardwood Flooring (Ontario) Limited being placed in one ballot box and the ballots cast by employees of Satin Finish Hardwood Flooring Limited being placed in another. Both ballot boxes shall be sealed on completion of the vote, and remain so until the parties have had a full opportunity to present their evidence and make their submissions to the Board with respect to the appropriate bargaining unit(s) and the applicant's claim for certification pursuant to section 8 of the Labour Relations Act.

17. The matter is referred to the Registrar.